Oregon Standoff Overshadows True Meaning of the Property Clause and the Constitution

Original meaning of Constitution twisted into a cudgel for state power

Let’s forget Ammon Bundy and the Malheur National Wildlife Refuge occupation for a minute. It’s a sideshow overshadowing the real issue and allowing the liberal corporate media to portray constitutionalists as gun-toting fanatics.

The real issue boils down to private property and the federal government. Liberals and other defenders of the power of the state over the individual assume the government owns the majority of land in the West and it graciously allows ranchers to use it provided they pay reasonable fees. If challenged on this premise, liberals usually cite the Property Clause in Article IV, Section 3, Clause 2 of the Constitution.

Proponents of state power over the individual argue the Property Clause permits a centralized federal government to hold state lands for a variety of reasons–presently and popularly for liberals to preserve wildlife and the environment–but this interpretation (known as the “police-power theory”) runs counter to the original purpose of the clause.

Thomas W. Merrill, a law professor at Columbia Law Schools, cites a court ruling to explain the original concept of the Property Clause:

A leading nineteenth-century exposition of the constitutional authority of the federal government over federal lands, Fort Leavenworth Railroad Co. v. Lowe (1885), is generally consistent with [the original understanding of the Property Clause]. There, Justice Stephen J. Field wrote that the authority of the federal government over territories is “necessarily paramount.” But once a territory is organized as a state and admitted to the union on equal footing with other states, the state government assumes general sovereignty over federal lands, and the federal government has the rights only of an “individual proprietor.” The federal government can exercise rights of general sovereignty over property only if there has been a formal cession of sovereignty by the state under the Enclave Clause. Justice Field qualified this vision of separated sovereignty, however, by noting that if the federal government acquires land outside the Enclave Clause, any federal forts, buildings, or other installations erected on such land “will be free from any such interference and jurisdiction of the State as would destroy or impair their effective use for the purposes designed.”

The Enclave clause limits federal government ownership of land to “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings,” including post offices and post roads.

“The Enclave Clause was sold to the ratifying public on the basis that enclaves would be relatively small. Holding massive tracts of undeveloped land (such as in Yosemite National Park, nearly 750,000 acres) as enclaves is not what the Founders had in mind,” writes Natelson.

Under this original and subsequently diluted understanding of the Property and Enclave Clause—most recently with the Federal Land Policy and Management Act of 1976—the Bureau of Land Management has no right to hold land and should have long ago disposed of it. (Moreover, it can be argued, the BLM itself is an unconstitutional and therefore illegal entity.)

Unfortunately, due to the impulsive behavior of Ammond Bundy and his crew in Oregon, the corporate media has aggressively pushed the government’s stance on the Property Clause and its unconstitutional domination over millions of acres of land around the United States.

It is indeed unfortunate the Constitution—misread and turned into a cudgel for state power with the help of the corporate media—has been overshadowed by the irresponsible actions of a gang of self-defined patriots who are doing absolutely nothing constructive for the cause of individual rights and private property.

Instead, they have allowed the media to portray constitutionalists and other advocates of liberty as little more than armed fanatics bent on starting a war with the federal government.

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